Search Site

Monday, May 20, 2013

Sex, People with Disabilities, Prostitution, and Universal Health Care: Reflections on "The Sessions"

One of my favorite initiatives at Harvard Law School, where I teach,
is that faculty members get to offer an optional 10-12 student
not-for-credit "First-Year Reading Groups"
on a topic of interest to them that is related to law in some way but
not too law-class like. I've taught a reading group on bioethics and law
through film that pairs films with papers/topics in bioethics (e.g.,
A.I. with readings on personhood, Minority Report and neuroscience and
law and predicting criminality, Dirty Pretty Things and organ sale and
exploitation, The Constant Gardener with clinical trials in the
developing world, Eternal Sunshine for the Spotless Mind and therapeutic
forgetting and "cosmetic neurology" and many others...)

Next year I will add The Sessions,
a film I found very enjoyable starring John Hawkes, Helen Hunt, and
William H. Macy from last year that I also found very bioethically
interesting. The film is based on a true story and follows Mark O'Brien,
a poet who lives in an Iron Lung due to complications from Polio. After
unsuccessfully proposing to his caretaker, and believing the end of his
life may be nearing, he decides he wants to lose his virginity. He
hires Cheryl Cohen-Greene, a professional sex surrogate, who will offer
him a maximum of six sessions but makes clear to him this is therapy not
romance. I will stop there to avoid ruining the film, but on to the
bioethics...

There are fairly clear issues raised about
commodification, exploitation, the difference between sex therapy and
prostitution, that I have writtenabout
in various forms in various places. These are certainly interesting
issues but familiar enough. What the film newly prompted me to think
about, though, is actually universal health care. In particular, as I
have written about indirectly in a couple of papers,
what would some of the most prominent theories explaining why we need
universal health care say about whether the state should pay for sex
therapy (or perhaps even prostitution) for people with disabilities like
Mark who find themselves otherwise unable to have sex?

For example, in his wonderful book Just Health, my colleague Norman Daniels,
coming from a more Rawlsian tradition (i.e., a liberal tradition
focused on promoting liberty and distributive justice through giving
priority to the worst-off), grounds the state’s role in promoting health
in the obligation, as a matter of political justice, to ensure
access to the “normal opportunity range” to pursue the “array of life
plans reasonable persons are likely to develop for themselves.”
Although Daniels' focus is on health care, it seems to me that sexual
satisfaction is also part of that normal opportunity range and part of a
life plan most of us would like to pursue.

Similarly, Martha Nussbaum in her great book Frontiers of Justice,
writing from a more aretaic (i.e., Aristotelian, focusing on character
and virtue) perspective, has argued that the state’s role is to enable
human flourishing by raising people above the threshold level on a
number of “capabilities.” Among these she mentions “bodily integrity,”
as including “having opportunities for sexual satisfaction and for
choice in matters of reproduction." I have previously discussed
how this kind of approach may justify funding reproductive
technologies, but it seems to me as though it also fairly directly
establishes an argument for funding Mark's attempts to lose his
virginity.

Now this is meant to be provocative, of course. And for some this is no doubt a reductio ad absurdum
against universal health care. Fair enough. But for those who believe
there is a moral case for funding universal health care, does the
argument also lead to funding these kinds of sex therapies? Health is
important, of course, but let's be frank (and my parents can stop
reading at this point) so is sexual satisfaction, and both seem to me
essential parts of the normal opportunity range and/or human
flourishing.

Now
one distinction might be the anti-commodificationist objections I
gestured at above in the sex therapy or prostitution case, that
distinguish health care. But for those not moved to forbid the kinds of
services Cheryl provides Mark on these grounds, should the state pay?
Perhaps there is, to use Radin's term, there is an opportunity for an
incomplete commodification posture by allowing it to be bought and sold
but not having the government pay.

Others might say the kind of
good Mark seeks, sexual satisfaction from a paid therapist, is a kind of
ersatz version of what is good. I am not sure I agree with this, and
think that there are many for whom sex with a relative stranger may be
as valued as sex with a life partner, and this notion seems somewhat
quaint in an era of hooking up and open relationships. In any event,
even if you think this is a kind of second-class good, many health
interventions also offer less than ideal artificial substitutes
(prosthetic limbs instead of real ones) but that does not stop us from
funding it.

Still others might agree that this is a valuable thing
to fund for for someone like Mark, but suggest it should get relatively
low priority in the pantheon of health care and education
interventions. To those I would push back and say man people spend a
disproportionate part of their life in search of a sexual partner, and
attempts to cope with sexual dysfunction (e.g., Viagra) is something on
which many Americans put their money where their mouth is (hmm... maybe
not the best choice of aphorism in this context...)

Finally, some
might object that some people with disabilities would not want these
services. Fair enough, but as with Nussbaum's capabilities approach we
are talking about enabling those who want it not forcing it on those who
don't.

As I said, this is meant to be provocative. But I will
be curious to know what others think, does the state have an obligation
to fund these services the way it does health care? If so, should that
obligation extend beyond those with disabilities like Mark to those who
face other deficits making sexual relationships hard to achieve?

Comments

We might find a framework for the analysis in the ongoing dispute over whether sexual activity is a major life activity under the ADA.

It also occurs to me your students might enjoy comparing the portrayal of Mark O'Brien in The Sessions with Mark O'Brien's own self-presentation in the award winning 1996 documentary Breathing Lessons.